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Judgment reserved in South Africa’s first climate change court case

The outcome of South Africa’s first climate change court case could set an important precedent.

Judgment has been reserved, following compelling arguments in the Pretoria High Court by lawyers for Earthlife Africa, the Department of Environmental Affairs (DEA) and the developers of the 557.3 MW Thabametsi coal-fired power station, in Limpopo.

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Earthlife Africa, represented by the Centre for Environmental Rights, argued that the DEA had granted the Thabametsi power station an environmental authorisation without adequate information about its potential climate change impacts.

But lawyers for the DEA have argued that, while climate change is a relevant factor to consider, the regulatory regime does not currently require a climate change impact assessment as a prerequisite for granting an environmental authorisation.

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“There is no basis for reading such an obligation into the regime,” the DEA says.

In October 2016, Thabametsi was awarded preferred bidder status in South Africa’s Coal Baseload Independent Power Producer Procurement Programme (CBIPPPP). The power station is owned by a consortium including Japan’s Marubeni – which is the lead developer – as well as Kepco, diversified miner Exxaro Resources, Royal Bafokeng Holdings, KDI, Tirisano and the Public Investment Corporation.

Coal will be sourced from Phase 1 of Exxaro’s Thabametsi mine.

The CBIPPPP preferred bidders are required to obtain environmental authorisation from the DEA before they can start construction and operation of their proposed power stations. Thabametsi had applied for and was granted the environmental authorisation.

However, Earthlife Africa appealed to Environmental Affairs Minister Edna Molewa, calling for a climate change impact assessment for the power station. The Minister did so, but Earthlife Africa is contesting the fact that she did not refer Thabametsi’s application back to the DEA to make a fresh decision about the authorisation.

“Earthlife Africa contends that it was unlawful, irrational and unreasonable for the Minister to do so.”

The environmental justice organisation contends that a climate change impact assessment is needed before consideration is given to granting a coal-fired power station an environmental authorisation.

“This would allow decision-makers to determine whether a power station should be allowed to be constructed at all and, if allowed, what kind of conditions and safeguards should be imposed to limit its climate change impact over its 40-year lifetime.”

The DEA argues that the impacts of climate change are most appropriately dealt with through the Air Quality Act as part of its air emission licensing process. The process is managed by municipalities and not the DEA. But the environmental justice organisation strongly rejects this.

“Although greenhouse-gas (GHG) emissions are a significant contributor to climate change, climate change impacts are far broader than GHG emissions, as some of these include water scarcity, more extreme weather events, such as droughts and flooding, and temperature increases.”

Thabametsi’s reports, prepared by Savannah Environmental, indicate that its power station would emit the equivalent of 8.2-million tons of the GHG, carbon dioxide, a year.

Earthlife Africa is hoping that the environmental authorisation for Thabametsi will be set aside and referred back to the DEA.

“The DEA would then need to consider the full and final climate change impact assessment, along with public comment, before making a decision on whether to re-issue the authorisation.”

But Thabametsi’s legal team say Earthlife’s challenge to the outcome of the internal appeal is “based on a fundamental misreading of the Minister’s decision”.

“Properly understood, that decision accepted that climate change had been adequately considered for the purposes of the environmental authorisation, but called for a climate change impact assessment to be undertaken for future use.”

The DEA said the decision to grant the environmental authorisation to Thabametsi in the absence of a climate change impact assessment was compatible with South Africa’s domestic policies, guidelines and regulations.

The Integrated Resource Plan 2010 developed by the Department of Energy, envisages that coal-fired power will continue to contribute a sizeable portion of South Africa’s energy supply.